Standing Committee F

[Mr. Eric Illsley in the Chair]

Drugs Bill

Amendment moved [this day]: 
No. 25, in clause 1, page 1, line 18, leave out 'at a relevant time' and insert 'at any time'. 
—[Mrs. Gillan.]

Eric Illsley: I remind the Committee that with this we are discussing the following:
No. 26, in clause 1, page 2, line 1, leave out subsection (5). 
Question again proposed, That the amendment be made.

Caroline Flint: Welcome to our proceedings, Mr. Illsley. I hope that we will continue to make good progress this afternoon.
We were discussing whether or not the aggravating factor that increases the seriousness of the offence of supplying drugs in the vicinity of a school should be applied at any time. That is the substance of the amendment of the hon. Member for Chesham and Amersham's (Mrs. Gillan). We are trying to create a safer zone around schools to protect young people under 18, who have a statutory duty to attend during the school term, while their families similarly have a duty to ensure that they do so. As children are required to attend school, it is essential that they are not exposed to the unnecessary risk of drugs. There are after-school activities and, as in my constituency, many schools provide play schemes and other activities on the school premises. That is why it is important that we do not lose the focus of the aggravating factor. 
We cannot accept the amendments, as they go beyond the intention of the clause. They would apply the aggravating factor to any time, even when it would be difficult for a prosecution to claim that children were unduly at risk. Furthermore, because the clause covers all dealing in the vicinity of schools, including dealing between adults, the amendments would mean that an aggravated factor would be established when an adult dealer supplies drugs to another adult, even when children and young people could not be seen to be exposed or at risk. Unfortunately, therefore, the amendments weaken the focus on the threat posed to young people while attending school.

Alistair Carmichael: I apologise to the Minister if she dealt with this during my absence towards the end of the morning sitting, but it would be helpful if she placed on the  record exactly what she means by ''in use'' by people under 18. I have in mind a common situation, where children return to the playground after school hours and use the area for their own purposes. At that stage, the premises are not really in use as a school, and it is difficult to know how anyone in those circumstances would know whether it was ''in use'' or not.

Caroline Flint: The hon. Gentleman makes a good point, and, as I said earlier, our consideration when considering the issue was recognising that many schools are no longer just buildings used to support young people in their activities during the school day, or the school term, but are more and more engaged in their out-of-school activities as well, which is why the clause is phrased in such a way to capture those times when schools are being used by young people under 18. People might say in their defence that they did not know, but they will have to justify that.
I tried to give some examples this morning of an issue that is pertinent to the amendment, and to all amendments regarding this issue—that what would fall within ''the vicinity of the school'' may differ from area to area. Part of the guidance will focus on the risk for young people and children of exposure or contact within the vicinity of a school. That will vary from one community to another. A distance in itself may be applicable, but other factors may need to be taken into account. Our main focus when developing the guidelines will be to determine whether a place falls within the vicinity of a school and will pose a risk to the children when they attend that school. 
I listened to what hon. Members said this morning and I will consider whether it might be possible to arrive at a definition. However, because the risks may vary from one place to another, it may be difficult to insert a prescriptive definition in the Bill. I will consider the general issue of defining what we mean by vicinity and the issues that will inform the more detailed guidance.

Cheryl Gillan: I hope that the Minister will continue to be generous in giving way so that we can have a real debate on this Issue. Unfortunately, she is not setting my mind at rest. She is leading me further and further down a muddled path. She said that she wanted to set up a safety zone around a school, but she then says that she wants to close down the time frame so that we prevent adults dealing drugs to adults in the vicinity of the school falling under the aggravated offence.
Even if it is an adult dealing to adults in the vicinity of the school, that building per se may attract children out of hours when it is being used as a school. Children return to buildings that they find familiar when they are at a loose end and want to play or simply congregate. In all our communities we see children hanging around school premises when schools are not being used, even in the holidays. I cannot understand how the Minister is achieving her stated aim. How is  she protecting children by creating this safety zone as it seems to depend on what time of the day or night it is but does not have children at its centre?

Caroline Flint: Let me be clear. We have already discussed this morning how there are aggravated factors if dealers are targeting vulnerable people, which include all those under 18. The clause focuses specifically on how a school is used by young people. That is the added plus to which we are trying to attend. While defining how the aggravating factor is to be used, it is appropriate to have a sense of the risks that are posed to young people and children. That could vary from one area to another. I tried to explain that in more detail a little earlier.
If someone is supplying drugs to another adult and is doing so in an area around a school where young people are on their way to school or are dropping into the cafe on the way to school, that may become known through surveillance and other means. The police often carry out operations to target dealers and to obtain evidence to convict them. They may witness this, and we think that the aggravating factor should apply here. There might be other aggravating factors, too. 
If, however, someone is involved in dealing at a time when it is felt that the risk to young people was not a factor, it would probably be wrong for the aggravating factor to apply. That does not mean that the person will not be dealt with because the offence is dealing, for which they will be arrested. I hope that there would be evidence to support that in court. The judges have the discretion to consider a number of different circumstances in relation to the offence when they decide on the sentencing, as they do in other matters. This is one matter on which we think that where appropriate it should not be left to discretion but should be something that they should consider as a matter of procedure.

Angela Watkinson: The Minister said that she would give further thought to the matter. Will she take into consideration the circumstances that I mentioned earlier? A school in my constituency has a community church on a Sunday; it is very popular and the congregation is mostly very young people because it is an evangelical-style church. A dealer could reasonably say that he did not know that, because most schools do not have churches on a Sunday. Thus there are exceptional situations that could be used as mitigating circumstances in that a person could not be expected to know that the school was in use at the time, when it was actually full of young people.

Caroline Flint: Yes, I will examine the situation that the hon. Lady mentions and see whether there is anything further that we need to take into account in relation to the amendment. If people are dealing in a community, it is reasonable to expect that someone will be arrested and charged with an offence for which  evidence can be pulled together to convict that person. It is well known how schools are used in a community by the very nature of the number of young people and children going about their business, in and out of the school. However, I will look into the matter to see whether there is anything that we need to address.

Cheryl Gillan: I welcome you to our Committee, Mr. Illsley. I am delighted that you and Mr. Gale are looking after us.
I am disappointed with the Minister's reply. I welcome the fact that she will go away and think about defining the ''vicinity'' of a school, because everyone is perplexed about what it might mean. The Minister has muddied the waters even further by saying that the vicinity of a school may vary from area to area. That does not take us down the path to clarity; it makes the position even more uncertain. I will give way to the hon. Lady if that is not what she said, but I think that it is.

Caroline Flint: First, does the hon. Lady accept that in respect of the guidance we need to consult on the risks, and how to assess them in terms of young people in a given area? Does she accept also that there are issues that might vary, but that is how the guidance should help in order for the prosecution to make its case in relation to the offence of supplying drugs, for which a person would have been charged? It would therefore be the role of the Crown Prosecution Service to ask for the aggravating factor to be taken into account, and it will have to make the case based on the guidance. It does that in many other ways in relation to other aggravating factors.

Cheryl Gillan: I appreciate that the Minister is relying on a future publication on guidance, guidelines and consultation. That is why it would have been better if the draft guidelines had been available to the Committee and the consultation had been carried out prior to the Bill being laid before the House of Commons to be considered in Committee. There are matters that worry me deeply: the burden of proof seems to be slipping away because the defence will have many avenues to fall back on to remove their client from the ambit of the clause. That defeats the Government's purpose and the purpose of virtually all the Committee, notwithstanding the insistence of the hon. Member for Bassetlaw (John Mann) that dealing does not happen around schools. It is an extremely worrying aspect of the Bill.
I am also worried about the Minister's insistence that the safety zone around a school does not have to operate when there has been nobody under the age of 18 inside the school for an hour, and that adults outside the school, on the school premises or in the vicinity of the school, which we have not yet defined, could deal drugs but would be outside the ambit of the provision. The Minister is familiar, as am I, with the Domestic Violence, Crime and Victims Act 2004, the  Committee stage of which we both served on. In that context, there was a problem with children seeing and becoming inured to acts of domestic violence, and domestic violence repeating itself. There is no difference between that and children seeing and becoming inured to acts of drug taking and drug dealing and starting to believe that it is the norm. 
By including these restrictions in this well-meaning clause, the Minister is cutting off her nose to spite her face and not achieving what she intended. I think that the risks are great whether or not the school has been occupied in the last hour by under-18-year-olds. If we are going to have a measure about being in the vicinity of schools, why not make it apply 24 hours a day, instead of leaving this loophole? 
I am deeply unsatisfied with what the Minister has said. I appreciate that she will carefully consider how to define ''vicinity'' in the guidelines, but those guidelines are not available to the Committee at the moment so we are unable to see them. She is asking me to place faith in her, which I am unwilling to do. With a heavy heart, I shall press amendment No. 25 to the vote, and I ask colleagues to join me in voting for it. 
Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 7.

Question accordingly negatived.

Cheryl Gillan: I beg to move amendment No. 2, in clause 1, page 2, line 5, leave out subsection (6).
In rising to speak to amendment No. 2, I will be in danger of sounding like an old cracked record, because I have been around this circuit several times. However, I am determined not to give up, and I want to give the Minister yet another chance to respond. 
I am pleased to say that the amendment is supported by both Opposition parties. The subsection offers another entirely unnecessary loophole for the defence, and the Minister could do a lot worse than to leave it out. It adds nothing more than a get-out clause. We either want to make dealing in and around schools an aggravated offence or we do not. However, it is hardly being tough on dealers to leave this particular get-out clause in the Bill. 
As I read the Bill, a dealer could be selling drugs on a playing field or in a sports pavilion—not far from a  school, but we do not know whether that would be deemed to be in the vicinity of a school—but if he says that he did not know that there was a school there and could not reasonably have been expected to know, he would escape the provision. I would like the Minister to confirm that that is the case, perhaps by nodding. If the pavilion is round the back of a school, perhaps behind a fence, and the dealer is new to the area, he could say that he did not know that the school was there, even though it might be a matter of yards away, and escape the aggravated offence. 
Sports facilities and pavilions count, but many specialist schools have shared provisions that are open to the community. Since specialists schools were introduced and the use school facilities has increased, it is often difficult to tell the difference, because the facilities are open to the general public and do not have ''school'' plastered on the wall. Sometimes such facilities have ''leisure centre'' on the wall, for instance. However, such facilities are part of the school's premises, because they have been thoughtfully erected using private funding, as well as public sector funding, to expand the specialist school programme, of which I was so proud when I was a Minister. It is not easy to spot that such facilities are part of a school. 
I shall give the Minister another example. I went to a boarding school in Cheltenham and the house in which I lived, St. Austin's, was some way from the school. I used to walk from the school to a house where I lived with 50 other girls. That house was part of the school, but there was no way that anyone could ever have told that, unless they happened to know that it was boarding house for girls. It looked like it could even have been one of those posh little boutique hotels that are so popular now.

Henry Bellingham: It was a very posh school.

Cheryl Gillan: That is for others to say. My school was a hard school; it had bars on the window.

Henry Bellingham: To keep the boys out.

Cheryl Gillan: No, to keep the girls in.
A dealer could argue that he did not know that that boarding house was part of the school and would get away with the aggravated offence, unless the Minister were willing to state, for when the legislation is interpreted in future, that she would include boarding schools. 
There is another issue that I should like to ask about, although I did not know where in the Bill to raise it and have chosen this clause, because it deals with identifying premises. What happens, for example, when someone is dealing outside a local authority care home? In some cases care homes are educational establishments. The children resident there receive education on the premises. If the state is in loco  parentis, an extra burden of care should be placed, with a commensurately high penalty for a dealer who offends anywhere in the vicinity of that home. Has the Minister considered extending the provision in proposed subsection 4A(6) of the Misuse of Drugs Act 1971, which I suggest should be deleted, to include care homes, as there would be a concentration of youngsters, which would appeal to any dealer? 
That aside, I return to my original argument. If the offender or the offender's barristers reads the wonderful words in those provisions, 
''did not know and could not reasonably have been expected to know'', 
they could put up a pretty good argument that they did not know they were near a school in use by persons under the age of 18. If a night class was taking place, the dealer could say, ''But I thought it was an adult night class.'' There could be children learning in a late night session and the dealer would still get away with it.

John Mann: Is not the hon. Lady in essence arguing against the entire clause, which she was earlier saying she supported? Let us consider the Johanna primary school, which I live next door to and which is at the back of Waterloo station. People who might well be of no fixed abode reside in that area. There might be an occasion when one such person sells a joint of cannabis to another. Is she suggesting that that should be an aggravated offence because it would be directly outside a school and, potentially, during the relevant hours?

Cheryl Gillan: I think that it is for the Minister to define the premises and what is going on. I have a dilemma because I support the clause but I do not think it is strong enough. It has too many loopholes, has been hastily put together and is not well drafted. That is probably as damning as I can get.
I am sad that I am in position where I appear to be arguing against the clause. If we were to include the clause and flex our muscles to show that we are against dealers being around children and school environments, why should we make it easier for a successful defence to be mounted to remove the application of the clause? It is as simple as that. 
The hon. Member for Bassetlaw asked me to answer the questions, and I would love to do so from the Government Benches as a Minister in charge of this Bill. It is for the Minister to convince us that her proposed legislation will work well. While this measure is left in the Bill, I do not think it will work in the way that she intends.

Alistair Carmichael: I, too, welcome you to the Chair, Mr. Illsley. I always find that the wonderful thing about Standing Committees is that at the start one can never anticipate the direction in which they will go. As I prepared for today, I had at no stage anticipated that we would end up discussing provisions to protect the moral welfare of the young ladies at Cheltenham ladies college. That demonstrates the way in which matters can proceed.
Will the Minister explain about this particular defence, if I can put it that way? I am unsure whether someone can have a defence of an aggravating factor. If a matter is to be contested, how will this aggravating factor apply.? How will it be proved? Will it be done by way of proof and mitigation? If that is the case, what will be the standard of proof that is required to establish that an aggravation of the offence is involved? Is that something that the prosecution will have to prove beyond reasonable doubt, or will it be sufficient for it to prove it on the balance of probabilities? 
When it comes to having that defence, the onus presumably moves to the defence to establish that the defendant 
''did not know and could not reasonably have been expected to know''. 
 Again, will that be required to be established beyond reasonable doubt or on the balance of probabilities? Will it be sufficient for the defence to produce evidence that would produce any sort of reasonable doubt? 
There is nothing in the Bill that deals with those matters. It would be of enormous assistance to prosecutors, defence lawyers and the courts if things were to be made available. Their absence rather confirms in my mind the suspicion that has been voiced by the hon. Member for Chesham and Amersham that this is not particularly well drafted legislation and that it has been produced in haste.

Henry Bellingham: The burden of proof would almost certainly be beyond reasonable doubt. However, there is a loophole: my hon. Friend the Member for Chesham and Amersham, the shadow Minister, was right to flag up the point that some schools have extended campuses. In my constituency, there is an FE college with several outlying playing fields and buildings. One such building is in a particularly remote spot and is used fairly regularly. Some days it is used, and some days it is not; it varies according to which teacher or lecturer is taking which class at which time. Schools in some parts of the country are far from being compact on one site.
My hon. Friend is right to ask why this measure is in the Bill if we are trying to clamp down on the distribution of drugs and illegal substances outside schools. That is what the Minister is trying to do. On Second Reading, the Secretary of State spoke about that in strong language. It is obvious that any defence counsel worth their weight would take advantage of any doubt as to what the defendant knew. To have this  exemption in the Bill is not very clever, and the Government are likely to regret leaving it in if prosecutions fail because of it.

Caroline Flint: Having considered the amendment, and having listened to the contribution of the hon. Member for Chesham and Amersham, I am going to accept the amendment. Therefore, the courts will be required to treat the offence of supply as being aggravated where persons deal within the vicinity of a school when, or within an hour of when, the school is in use by young people, even if those persons did not know and could not reasonably be expected to know that the school was in such use.
We share a desire to protect young people from dealers, and I have said that I will consider other areas of the clause. On reflection, I agree that even if a dealer claims that he did not intend to expose young people to the risk of dealing, it is reasonable that he be caught by the clause if he is dealing in the vicinity of a school in use. 
Hon. Members also talked about school buildings. Schools have changed a great deal since I was a pupil, when a school was for school from 9 am to 3.30 pm in term-time only, and that was it, except perhaps for opening on Saturday mornings for sport. I have visited a number of schools, and see that things have changed a lot. For example, one school that I visited in the midlands has a housing office on its premises; a leisure centre has also been mentioned. We have tended to base the definitions on existing statutory definitions of schools. I will check on those provisions to ensure that some of the areas of concern are covered. 
I will reflect on the point that the hon. Member for Chesham and Amersham made about care homes in relation to the clause. Although some residential care facilities may have an educational aspect, others may not, and may be more like a residence for young people, albeit with a rather larger number of vulnerable young people in those premises. 
The original framing of the clause would have put an onus on the prosecution to prove beyond reasonable doubt that the defendant could not have benefited from the defence of not knowing, but that will no longer be the case now that we are accepting the amendment.

John Mann: Will the Minister answer my question to the hon. Member for Chesham and Amersham about the Johanna primary school, which is at the back of Waterloo station, and what would happen if a homeless person were to supply a joint of cannabis to another homeless person there? Would that be deemed to be an aggravated offence? If so, does the Minister think that that is the intention behind the clause?

Caroline Flint: My first reaction to that question is to say that a high number of homeless people, who may be involved in begging, have substance misuse problems. That is one reason why we made begging a trigger offence for testing: ultimately, we want to address the underlying addiction problems for the individual involved. I listened to my hon. Friend's  example, and this may sound hard, but if people outside a primary school were exchanging or supplying drugs, that would have to be attended to, whether or not they were homeless. My hon. Friend said earlier that people do not do drugs outside the gates of a school, but he has just given an example of where that does happen. They may not be selling to the children, but they are supplying drugs, and I think that that would fall within the vicinity of our intention to protect young people. That is not to say that there are not issues about our provision for people who are homeless. That is obviously important, but I do not think that we would tolerate drug activities outside a school, whether or not those involved were homeless.

John Mann: I would not deem that as being in the vicinity of the school, but that is not my definition; it is the definition that will be in law. Is the Minister really saying that such an offence should be classified as an aggravated offence, but that the wilful supply of heroin in a block of flats on an ongoing basis would, in law, be a lesser offence? That is absurd.

Caroline Flint: My hon. Friend is losing sight of the fact that we are talking about an aggravated factor for an offence of supplying drugs. Every day, people are charged with offences in respect of which the court has the discretion to take into account aggravating factors and mitigating circumstances. We are saying that if there is dealing in the vicinity of a school—we have had a big discussion about what ''vicinity'' means—that should be an aggravated factor in the offence with which the person is charged. That is right. If a homeless person was dealing drugs outside a primary school, they would be caught by this offence. They may be caught by other offences. For example, if they are begging outside the school, they will probably be taken and tested for drugs. Every situation will have its own narrative, circumstances and background, but I hope that I have been clear about what I understand in relation to the scenario that my hon. Friend has put before me, and about how I see the aggravated factor applying to someone who has been charged with the offence of supplying drugs.

Cheryl Gillan: I thank the Minister very much on behalf of all Conservative Members and, I think, our Liberal Democrat colleagues for accepting the amendment. We are very pleased that she has listened and decided to delete the provision from the Bill. I think that that will make a difference. I am particularly interested in the points on which she will come back to us, which relate to boarding school houses and care homes. She has also said that she will try to give us further and better particulars on the vicinity of premises. Will she be able to do that by letter while we are still in Committee, or would she prefer to leave those matters for now and discuss them again on Report and Third Reading?

Caroline Flint: It is rather difficult for me to say that I shall reply while we are in Committee, because it depends on where we get to next Tuesday. I do not want to make a commitment in case something amazing happens and we finish on Tuesday, and I  cannot keep to it, but I will make it a priority for us to look into the matters raised and to get back to hon. Members as soon as possible.

Cheryl Gillan: I do not think that there is any danger of us finishing on Tuesday, but we will try our best. I do not think that I have anything further to say. In fact, I am not quite sure what to say, because I have never had an amendment accepted by the Government before. Thank you.
Amendment agreed to.

Alistair Carmichael: I beg to move amendment No. 11, in clause 1, page 2, line 9, leave out 'requests' and insert 'requires or causes'.

Eric Illsley: With this it will be convenient to discuss amendment No. 29, in clause 1, page 2, line 9, leave out 'requests' and insert
'intends to use or uses'.

Alistair Carmichael: Subsection (7) states:
 ''For the purposes of subsection (4), a person uses a courier in connection with an offence under section 4(3) of this Act if he request another person (the courier) . . . to deliver a controlled drug''. 
Obviously, I was not alone in finding the use of the term ''request'' somewhat curious. I have known many drug dealers—I hasten to add that that was always as a result of a professional, not a commercial relationship—and a common theme among them was that they were not very good at their ''pleases'' and ''thank yous'', as we say in the Carmichael household at teatime. It therefore seems rather curious to limit the wording to ''requests''. 
I suggest taking out ''requests'' and inserting ''requires or causes''. That would allow those further up the chain to be caught by the provision if they can be identified. If I was at the top of a drugs supply chain and I told someone below me to request or, indeed, require somebody else to act as a courier, I would be guilty of causing that person to act in that way. As it is, the clause will catch only the person who instructs the courier in the first place. As we know, supply chains are sometimes fairly lengthy, and we should be trying to get those who are much further up the line. The word ''requests'' is far too weak and narrow, and I suggest that ''requires or causes'' could cover the matter much more adequately. 
The hon. Member for Chesham and Amersham has tabled a similar amendment, which would insert the words 
''intends to use or uses''. 
It raises the same issue, but I am not quite so sure whether it would extend the reach of this provision, so I shall leave the hon. Lady to speak for herself.

Cheryl Gillan: In many ways, the hon. Member for Orkney and Shetland anticipated what I was going to say. If I may say so, the word ''requests'' smacks of the highlands and of a very genteel way of life that involves giving one's children their tea and saying please and thank you. The real world of drug dealing is far more brutal, however, hence my stab at redrafting the Bill. The words 
''intends to use or uses'' 
are an attempt at a catch-all, because ''requests'' is too polite. In reality, the relationship will be between the dealer and a courier whom he will ask, blackmail, order or threaten. 
I want to make sure that some other instances will be caught even if we do not change the language of subsection (7). If a courier volunteered to carry the drugs, would that be deemed equivalent to the dealer requesting the courier to do his bidding? If someone is trying to curry favour with a dealer, he may indeed tender his services. I want to ensure that the relationship between the dealer and the courier is not diluted by there being a volunteering element, and by the word ''requests'' not applying.

Alistair Carmichael: The hon. Lady is right to raise the point about the courier supposedly volunteering. One can easily imagine circumstances in which the courier as, so to speak, a witness might be persuaded by those around him that it would be in his own best interests, and the interests of his kneecaps, to suggest to the court that he had volunteered and that no request had been made. The hon. Lady's amendment would meet that objection, as would mine, because the mere act of giving the drug in question to the courier for onward transmission would be caught by the word ''causing''.

Cheryl Gillan: The hon. Gentleman and I are of one mind. Frankly, I do not care whether the Minister accepts his amendment or mine. She has got into the habit now.

Crispin Blunt: It is not a habit yet.

Cheryl Gillan: Two could make it almost a habit.
There is another situation to be addressed, because we are talking about the real world of street dealing. If someone other than the dealer has asked the courier to collect the drugs or drug-related cash, would that also suffice? The defence might try to establish that no element of request occurred because another third party had told the courier to go and work for the dealer. I want to make sure that all those elements are caught by the clause and its language. 
However, I still find the language of legislation even less transparent now than it was in the 1990s, 1980s and 1970s. We could have had ''asks'' instead of ''requests''. The simpler the language, the better, in my view. I am on a bit of a mission to simplify and demystify legislation, and to put it into everyday language. At the very least, if the Minister will not accept either of our amendments, perhaps she will consider bringing the Bill back with the word ''asks'', which is simple and straightforward, and slightly less pompous and genteel than ''requests''.

Eric Illsley: Before I call the Minister to respond, can I remind the Committee of Mr. Speaker's ruling in respect of audible radio pagers and telephones; that applies to Standing Committees.

Caroline Flint: I actually have a huge amount of sympathy with the reasons behind both the amendments we are addressing. I do not think that the wording of the Bill is quite right, because it does not capture situations involving intimidation—or other situations, such as grooming, for example. What we know about vulnerable young people is that quite often someone might appear as their big buddy in a community, and there is a sinister way in which they can be cultivated; the hon. Member for Chesham and Amersham described the way in which someone volunteers and becomes involved in such a relationship. We need to reflect on what has been said.
I accept amendment No. 11 in principle, but I would have to seek legal advice on the wording before I could agree to it. With regard to amendment No. 29, I understand the reasoning behind the comments of the hon. Member for Chesham and Amersham, but a reference to intention to use might create difficulties in proving someone's intent to use a young person. That is why I am more favourable to the amendment of the hon. Member for Orkney and Shetland than to the hon Lady's.

Cheryl Gillan: I agree with the Minister. The intention to use increases the burden in the other direction, which would not be sensible. Just the term ''uses'' might suffice both as simple English and in fulfilling all our criteria. If the Minister is starting to make a habit of accepting our amendments—which I would be delighted about—I offer my congratulations to the hon. Member for Orkney and Shetland, as he will have caught up with me now. If we could just insert the word ''uses'', I would be perfectly happy.

Caroline Flint: Obviously, I am going to seek advice on more appropriate wording to cover the reasons behind the changes that, as we are all agreed, need to be made to this clause. It was said on Second Reading that we were looking to find some consensus on different issues, and this is one of them. If the hon. Members would agree to withdraw their amendments, I will come back with, I hope, suitable plain English phrasing which will meet all our concerns.

Angela Watkinson: When she is considering the wording, can the Minister ensure that it captures forms of coercion like, for example, a school pupil who has given into temptation once and is then pressured into continuing under threat of exposure? If their school has a zero-tolerance policy, it would result in their being excluded. So they are pressured into continuing after having tried it once, whereas they would really wish to withdraw.

Caroline Flint: I shall try and see if we can come up with something that covers all the concerns that people have raised, so that whether it is a direct engagement, or something more indirect, that will be taken into account in the drafting.

Alistair Carmichael: The Minister says that she will accept my amendment in principle. This is exactly the sort of principle that we ought to be encouraging within the Home Office. If it encourages them, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Cheryl Gillan: I beg to move amendment No. 3, in clause 1, page 2, line 12, after 'cash', insert
', or items intended to be exchanged for their monetary value,'.

Eric Illsley: With this it will be convenient to discuss the following amendments:
No. 14, in clause 1, page 2, line 12, after 'cash', insert 'or other consideration'. 
No. 15, in clause 1, page 2, line 13, after first 'cash', insert 'or other consideration'. 
No. 4, in clause 1, page 2, line 13, after first 'cash', insert 
', or items intended to be exchanged for their monetary value,'. 
No. 16, in clause 1, page 2, line 13, after second 'cash', insert 'or other consideration'. 
No. 5, in clause 1, page 2, line 13, after second 'cash', insert 
', or items intended to be exchanged for their monetary value,'. 
No. 6, in clause 1, page 2, line 18, after 'cash', insert 
', or items intended to be exchanged for their monetary value,'. 
No. 7, in clause 1, page 2, line 25, at end insert— 
'(g) any goods which are intended to be exchanged in the place of cash.'.

Cheryl Gillan: I hope the Minister has now got sufficiently into the groove on this that she is going to accept the principle of this next group of amendments, if not the exact wording. I confess that I am not entirely happy with the wording I have come up with. I prefer that of the hon. Member for Orkney and Shetland, even though to say so will probably get me shot at dawn. Frankly, it is the principle behind this that reflects the actuality of what happens on the street. That is what we are talking about today.
We have got to wake up and recognise that cash is not the only currency of the drug dealer. It was certainly alluded to on Second Reading by my right hon. Friend the Member for Haltemprice and Howden (David Davis), and we need to examine carefully where we are going with this clause. 
The Minister has gone to great lengths to identify a whole series of items to be included within the meaning of ''cash'': 
''notes and coins in any currency''— 
—yes, I can get there—''postal orders''—yes, I can envisage the odd occasion of a postal order being used by a drug dealer, but not too often—and 
''cheques of any kind, including travellers cheques''. 
We are starting to go into the realms of fantasy. I have not seen many travellers cheques being used by drug dealers on the streets. Then we seem to take off into never-never land. I really would like to know if the Minister knows of any bankers' drafts having been used in cases of dealing. After all, we are talking about  dealing in the vicinity of a school. We are not talking about drugs barons. So when I move from ''bankers' drafts'' to 
''bearer bonds and bearer shares'' 
then I start to get really worried, and think that they are dealing outside the gates of Cheltenham ladies' college.Then we have the catch-all provision at sub-paragraph (f): 
''any other monetary instrument specified by order made by the Secretary of State''. 
Let us face it: out there on the street kids are nicking mobile phones. Indeed, my own godchild has been mugged no fewer than five times and had his mobile phone pinched. They are nicking iPods, DVDs, trainers, clothes and various other things. I am afraid that theft has moved on to a more sophisticated form. The days of stealing the old car radio seem to be over. No one is interested in a car radio; people have far more exciting things to pinch and exchange for drugs. The Minister seems to be a little out of touch. 
I hope that the Minister will look at the clause and put in the Bill a provision that can cover all eventualities. I will not die in the ditch about the wording of my amendments. They are a vehicle to enable the issue to be discussed and give her an opportunity to accept the principle With so much drug-related crime going on, it is very short-sighted not to recognise that stolen goods are often the consideration for the contract. I hope that the Minister will see the logic of the amendment and amend the provision. I do not need to say any more until I have heard what she has to say.

Alistair Carmichael: It is clear that my mind was moving in the same direction as that of the hon. Member for Chesham and Amersham when we came to this part of the clause. It is necessary to have a wide definition of cash, but I have never come across any of the more archaic instruments that are included in the definition. As the hon. Lady said, it is much more common for drugs to be exchanged for goods, and that would not be covered by the definition in the Bill. There is a gap and it needs to be filled.The words ''or other consideration'' would fill that gap. If the Minister is advised otherwise, I should be interested to know, but it needs to be done. To insert the words ''or other consideration'' would be a fairly simple, straightforward and—dare I say it?—elegant way of doing it.

Henry Bellingham: I rise to support my hon. Friend the Member for Chesham and Amersham and the hon. Member for Orkney and Shetland, because cash is by no means the only currency used in drug transactions. Sub-paragraph (9) was clearly drafted by a very bright lawyer, but one who probably has no idea about the drug dealing that goes on in the real world on the street and the sort of barter exchanges that take place. As my hon. Friend said, many different items can be exchanged. That is why flexibility should be built into the clause.

Caroline Flint: Hon. Members will be pleased to know that I accept the principle behind the amendments. However, I want to clarify one matter, because I do not want there to be any confusion.
Using a young person as a courier does not have to be done in the vicinity of a school. Therefore, we are talking about a situation where somebody is supplying drugs, wherever it may be, and using children as couriers. The hon. Lady's point about bankers' drafts outside schools may not apply, but it could apply in other areas. As we know from issues relating to money laundering and so on, in certain circumstances bankers' drafts are used, as well as other forms of payment and cash. However, I accept what has been said this afternoon about the amendments. 
The first set of amendments catches items that can be exchanged for their monetary value; the second set is broader and catches anything that can be said to constitute a consideration in respect of illegal drug activity. Therefore, I ask the hon. Lady to seek to withdraw the amendment on the basis that I shall table one with suitable drafting that takes into account the points that have been made. 
Committee suspended for a Division in the House. 
On resuming—

Cheryl Gillan: I am delighted that once again the Minister has decided to listen to what Opposition Members are saying. It is obvious that cash is part of the story but her acknowledgement that it is not the whole story was my intention when I tabled the amendments. I hope that when she takes away the provision and brings it back with suitable amendments we will all be able to agree on it. I am glad that she has had the wisdom to accept our arguments. It bodes well for the rest of the Bill because we are improving the proposed legislation together as we go along. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Cheryl Gillan: I beg to move amendment
No. 27, in clause 1, page 2, line 37, leave out from 'above)' to end of subsection and insert 
'will apply upon Royal Assent'. 
This is a simple probing amendment to give the Minister an opportunity to clarify the provision's start date, particularly as when we read the detail in the regulatory impact assessment, parts of the Bill are not effective until April 2006 and possibly beyond. I am hoping, with the amendment, that the Minister can reassure me that the clause will come into effect on Royal Assent and that the additional clause is merely there to rule out the legislation being retrospective. Perhaps the hon. Lady could explain why she thinks that it is necessary at all, because in reading the provisions it would appear that it would apply only to a limited number of offences that were in train at the time the Act came into force. Perhaps I will be able to speak again after the Minister has explained the meaning of the clause.

Alistair Carmichael: I shall not detain the Committee. I am with the Government on this occasion; the Bill's wording is preferable. As I read clause 24, the Bill will require commencement orders to be made. In those circumstances it is appropriate that a subsection such as clause 1(2) should make it clear that it does not apply to offences committed before the clause comes into force.

Caroline Flint: As the hon. Gentleman just mentioned, the requirement in clause 1 applies only in respect of offences committed after the clause comes into force. While all Members of the Committee are keen to tackle people involved in drug dealing, there are some issues that bear on what is right and appropriate in terms of bringing new factors into the criminal justice system. One of those is to ensure that persons are aware of the applicable penalty to their offence when they commit it and that they are not subject to a harsher sentence when they are tried.
There is an issue if the law is applied retrospectively. I am advised that applying a heavier penalty to an offence than the one pertaining when the offence was committed is contrary to article 7 of the European convention on human rights; therefore I cannot support the amendment. The hon. Member for Chesham and Amersham was concerned about timing. I will check outside the Committee that what I am saying is right—the antisocial behaviour order provision is likely to come into force in 2006, but parts 1 and 2 could be brought into force quite quickly. Another issue is when Royal Assent might come. It might be sooner rather than later—who knows. 
We have some time in which to plan. Many reasons, not least human rights, are appropriate to how the clause is framed, and I hope that the hon. Lady will withdraw her amendment.

Cheryl Gillan: I am happy with that response. We are all conscious that the timing of the Bill is trickier than in the normal course of events. I understand what the Minister has said. No doubt, in time, the Bill will hit the statute books and come into operation. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendment proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill. 
Question agreed to. 
Clause 1, as amended, ordered to stand part of the Bill.

Clause 2 - Proof of intention to supply a controlled drug

Cheryl Gillan: I beg to move amendment No. 31, in clause 2, page 3, line 3, leave out subsection (4B).
I see, Mr. Illsley, that you are shaking your head. This morning Mr. Gale gave us the impression that we could speak to general matters concerning a clause. I am happy with that or a clause stand part debate.

Eric Illsley: Given the situation in which we find ourselves, for the moment let us speak to the amendment, then we will have a clause stand part debate, given that there is only one amendment to clause 2.

Cheryl Gillan: It is a simple matter. I have used the device of removing subsection (4B), because I would like to hear what the Minister has to say about the burden of proof. I would prefer the burden of proof to fall on the defence. Once again, the matter will be dealt with not in the Bill but in regulation, but I would like to hear what the Minister says about the quantity of the drugs and the burden of proof.

Alistair Carmichael: The hon. Lady does us a service in introducing the amendment. Given my experience with subsection (6) of clause 1, I am with her in wishing to probe the Government. I am not necessarily seeking the withdrawal of subsection (4B). The wording at the moment is opaque, talking of evidence that
''is sufficient to raise an issue that the accused may not have had the drug in his possession with that intent''— 
the intent to supply. 
There is the question of the burden of the proof. The Bill's wording would, at the moment, make it, prima facie, appear that the burden falls on the defence. That need not necessarily mean that the defence would need the evidence. Inferences could be drawn by the defence from witnesses for the Crown. That is then the standard required to be demonstrated. If the proof of intent to supply, which is an essential part of the charge under clause 5(3), is not sufficient and raises a reasonable doubt, it would lead to acquittal on the intent to supply charge. Will a higher barrier be set that would allow a conviction of simple possession, but not possession with intent to supply? Will the defence be required to establish on the balance of probabilities that the person's intention was not to supply? 
The use of the term ''to raise an issue'' and the fact that the accused may not have the drug, is somewhat novel and does not sit well. Raising an issue is not a term of art of which I am aware. Perhaps that is a term of art in English law. Although subsection (5) is needed, it could be much better drafted. I hope that the Minister will consider that between now and Report.

Caroline Flint: The amendment relates to a clause that creates a presumption of intent to supply, where the defendant is found to be in possession of a particular amount of a controlled drug.
Just to set the context, we met a group of police officers working in the National Criminal Intelligence  Service and in police forces throughout the country, all of whom were in one way or another involved in tackling drugs supply offences. One concern was raised in relation to how, on occasions, people involved in drug dealing would claim that their drugs were just for personal use to avoid a supply charge. I have also seen dealers on CCTV depositing small packets of a drug in the street and going back and forth, selling drugs and returning for their supply.

Alistair Carmichael: My recollection is that possession under section 5 of the Misuse of Drugs Act 1971 is based on knowledge and control. Surely, in the situation that the Minister describes, although the person was not physically holding the drugs, they would still be in possession because they would have both knowledge and control of them.

Caroline Flint: The hon. Gentleman is a lawyer. I will read what he said in Hansard. I was trying to describe how drug dealers operate to limit the opportunity for the police to come forward with a more serious offence for which there are more serious penalties. A number of the measures in the Bill are to do with closing some of the loopholes that the police have said need to be addressed and which in many cases foil them in bringing forward successful convictions.
The clause places an evidential presumption on the defendant, rather than a legal burden of proof. The presumption is rebutted where evidence is adduced that raises an issue, or arguable case, that the defendant did not intend to supply the drugs in his possession. If such evidence is raised, the prosecution will be required to prove beyond all reasonable doubt that the defendant intended to supply the drugs in his possession. With a number of such investigations other evidence may be available. 
By introducing this provision we are not trying to limit the threshold, or say to the police that the threshold is enough. We would always want to look for a rounded body of evidence with which to bring forward an arrest and charge on an individual. 
The level of possession that will give rise to the presumption will vary from drug to drug and will be prescribed in regulations approved by a resolution of both Houses of Parliament. In formulating those regulations, the Secretary of State will consult the Advisory Council on the Misuse of Drugs and a range of other people, too, including the Forensic Science Service, the police and the CPS, to come to an agreement on what the level should be. 
I understand that in parts of the country the CPS and the police often look at the amount of possession informally. While that is not enshrined in guidance, they use it as a guide for whether they can take a case to court or not. That has not had the rigour of consultation and could lead to inconsistencies in different parts of the country.

Alistair Carmichael: The hon. Lady speaks about approaches taken by the CPS and the police in different parts of the country. What response did she  get from the Lord Advocate and the Solicitor-General, who were presumably consulted on that matter as it relates to Scotland?

Caroline Flint: I will seek the information that the hon. Gentleman needs.
I come to my next point. We sought advice on the issues surrounding the burden of proof. I will explain why we cannot accept the amendment tabled by the hon. Member for Chesham and Amersham and why the measures we provide offer greater scope for conviction for supply offences, while working within a framework that recognises that in some cases there could be a reasonable offence. 
The purpose of the clause is to achieve greater consistency throughout the country when a defendant is charged with possession with intent to supply and clarify the point at which the quantity of drugs in a person's possession becomes above and beyond that reasonably held for personal use. We hope that there will be increased success in convicting dealers and that the proposals will contribute to disrupting their activities. As well as arrests and convictions, part of what we trying to achieve through looking at different ways of law enforcement is disrupting criminal activity. Anything that we can do to make street dealing harder is to be welcomed, whether it is done through the use of CCTV or other measures. We are trying to tighten the net around these individuals. 
The amendment would prevent a defendant from being able to rebut a presumption that he intended to supply the drugs in question where evidence is adduced that raises an issue or argument in the case whether or not he intended to do so—for example, if the person is a known drug user. The amendment would require a court to do so, irrespective of considerable evidence raised to the contrary. 
A person from a rural area who comes into a city area to buy their drugs might want to purchase larger quantities than we might consider normal for their own consumption. When we were working this matter through, we considered whether we should go down the route suggested by the hon. Lady or use our preferred option in the Bill. We felt that there could be circumstances where there needed to be an opportunity for a defence.

Alistair Carmichael: I am grateful to the Minister for giving way. She has been generous with her time. When she says that it is for the accused or the defendant to raise an issue or arguable case—the latter words to do not appear in the Bill—is that the same as raising a reasonable doubt on the charge outlined in section (5)(3), the question of intent to supply, or is it different?

Caroline Flint: I will look into that question and get back to the hon. Gentleman. If I cannot answer him this afternoon I will write to him with clarification.
The effect of the amendment would be to require a court, irrespective of considerable evidence raised to the contrary, to assume that a person intended to supply the drugs in his possession solely on the basis of the amount of drugs in question. The intention may be  to create a reverse legal burden of proof, which would mean that the defendant would have to prove beyond reasonable doubt that he did not possess the drugs with intent to supply. We have taken advice on the matter and while we believe that we need to deal with loopholes that have been brought to our attention, the amendment would not be compatible with article 6(2) of the European convention on human rights, which enshrines the presumption of innocence.

Cheryl Gillan: I tabled the amendment because a fear was triggered in my mind by a briefing sent to us by Transform. That organisation felt that much of the debate was theoretical because its legal advisers had advised that the ability of prosecutors to activate a presumption of guilt for intention to supply is severely limited by the wording and technical detail in the Bill, and specifically by new subsection (4B), which I am seeking to delete as the vehicle for this debate. The advisers said that the caveat in new subsection (4B) means that if evidence is adduced—they have gone to a dictionary for the meaning of adduced, which is:
 ''To mention a fact as a supporting reason, piece of evidence etc.''— 
the presumption of guilt of intent to supply will not be triggered. 
Defence lawyers will inevitably use the caveat, which was included to make the Bill compliant with human rights legislation, as the Minister confirmed, to avoid the presumption by producing evidence that could even be in the form of a simple testimony from the defendant. The effect will be that the measure, which appears to be tough and which I support, will rarely if ever be deployed. Will the Minister answer that specific point, because it was the point of anxiety raised in my mind when I originally read the briefing?

Caroline Flint: My understanding is that although the clause will allow a defence for an individual against presumption of guilt, it goes further than we have ever gone in that the person will have to give good reason as to why the presumption should not apply. The prosecution will still have to make a case against the person in court. I would hope that, in most cases, the amount of drugs on a person would not be the only piece of evidence. Many such individuals are charged with possession, so other information and intelligence would form the case against them.
I shall look into what the hon. Lady said in more detail. She is quoting from the Transform briefing, which I do not have in front of me, but I will have a look at it and compare notes. I do not accept her amendment for the reasons that I have outlined. The measure strengthens the opportunities to charge people with intent to supply. That loophole has been brought to our attention, but when we have shared concerns with the police and others, they have been happy. 
The Lord Advocate and Solicitor General for Scotland are also happy with the clause. The hon. Member for Orkney and Shetland raised an issue about what ''raises an issue'' actually means. I  understand that the term was used in the House of Lords this year in the case Sheldrake v. the Director of Public Prosecutions, Attorney-General's reference No. 4 of 2002—I shall look that up in whatever reference book is necessary. Apparently, the House of Lords refers to it in terms of raising an arguable case. That sounds like a lot of legal information to me, which the hon. Gentleman may be more aware of.

Alistair Carmichael: Does the hon. Lady believe that it is appropriate to import into Scots law, through a United Kingdom statute, a term that is a term of art in England only?

Caroline Flint: I will take some advice and come back to the hon. Gentleman on that one so that I am absolutely clear about exactly what I may or may not be agreeing to.
The measure has a number of advantages. Not all defendants will be able successfully to raise the issue. It will send out a clear message to dealers, whose current dealing methods may be disrupted. While helping to understand the issues around setting thresholds, I hope that it might also improve consistency as to when those in possession of drugs are charged with intent to supply. We know that the police see the approach as being worth while; in some areas, as I said, the police have agreed informal thresholds with the CPS. We are seeing if we can give a bit more formality to that, to get more forces working to tackle individuals in this way. Therefore I call upon the hon. Lady not to press her amendment.

Cheryl Gillan: There is no doubt that this proposed reversal of the evidential burden raises some legal problems. In article 6 of the Human Rights Act 1998 it is stated clearly:
''Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.'' 
If the clause is enacted, I need to make sure that its apparent reversal of the burden of proof—meaning that individuals are presumed guilty until they prove themselves innocent—does not fall foul of that in any way. 
I return to the term ''adduced'', which I know the hon. Member for Orkney and Shetland is particularly hung up on, as well as the phrase ''to raise an issue''. Again, we seem to be coming back to language. Yet that is, after all, what scrutiny of legislation is all about—to examine the language and to examine carefully whether it may work in the way we intend, or against us. I am not entirely unconvinced that the brief I have received from Transform is correct. I will withdraw this amendment on the understanding that, once again, the Minister will look at this area, as I still have worries about it despite what I heard her say. It is a very tough measure, which I approve of—and I want to ensure that it bites.

Alistair Carmichael: On this question of workability, it is perhaps appropriate that I explain a little further my concern about the importing of this English term from the Sheldrake case into Scots law. The decision in Sheldrake, albeit a decision of the House of Lords, will not be binding in a Scots court. It is still open, then, to  Scots courts to come up with their own construction of what would be meant by this term—which may be different. That, of course, is always open to the courts, but where we already have an established body of case law on terms that are not novel to Scotland—and when this part of the Bill is to apply UK-wide—why not use it? Why not just say ''led'' instead of ''adduced'', and say ''establish a doubt'' instead of ''raise an issue''?

Cheryl Gillan: That is a good intervention with which I can agree. This just reinforces that we would like the Minister to reconsider the subsection and, if possible, write to us during the course of the passage of the Bill—before Report and Third Reading. I know that will put a burden on her and her office at a time when the legislative burden is huge, but it is important as we have some severe doubts about the efficacy of the clause. We would like to see it work and therefore would particularly appreciate the Minister giving us that undertaking. I will give way, if she is willing to give it.

Caroline Flint: I give an undertaking to write to the hon. Members on these issues.

Cheryl Gillan: I thank the Minister and, therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Question proposed, That the clause stand part of the Bill.

Alistair Carmichael: I said earlier that I felt there was no real point in having clause 1 of the Bill. I feel rather more strongly about clause 2. While there is an element of it not advancing the law in any way—much the same was true of the previous clause—I see a number of dangers arising from clause 2. I can only see one advantage, to my mind; that it may reduce the amount of police time spent in court. At the moment, where a charge is laid concerning the intent to supply, it is normal to bring expert witnesses—who are normally drugs squad officers—to give evidence on what would constitute dealer quantities, and what inferences could be drawn from the possession of certain other articles.
It is possible that in making a presumption such as that, we would avoid the attendance of drug squad officers, particularly in summary cases. Although I can see the attraction of that, it may not necessarily be an advantage. It is a big advantage to the drugs squad officers to give evidence in court and to have the experience of being cross-examined on their experience by solicitors, advocates or barristers in a court. It keeps them sharp and allows them to build up a level of experience—I speak as someone who has been involved in training police officers in such areas in the past—that they are then able to use to much better effect on the big occasions and the big cases in the High Court, when it really matters.
The real danger that I can see in the clause is on the practical side. I foresee that, with the best will in the world, busy police constables working in the streets will come across cases in which there is a substantial amount of drugs but that substantial amount falls short of the level that is to be prescribed by the Secretary of State in order. In those circumstances, the police officers will think, ''Well, it is not a dealer quantity according to the regulation, so I will just charge him with simple possession.'' 
The provision will bring with it a laziness of attitude, which will mean that ultimately the community is not better served. Speaking from my own experience of having said to police officers, ''Go and look for further evidence; I am looking for evidence of this, that or the other'', I know that they will not necessarily do that of their own volition. I am concerned that if we operate with a presumption of this sort, a busy constable in the street or a busy duty sergeant will take the attitude that if the amount does not come up to the prescribed level, they will go for simple possession. By the time the matter is then reported to the prosecuting authorities, the evidence that might have been there will no longer be there. 
The reason why I do not think that the provision achieves anything new is that existing case law says that simple possession of a substantial amount of drugs is sufficient for a court to infer intent to supply. That has been the case for some considerable time. If that has changed over the past four years, when my interest in those matters has been less vigorous than it otherwise might have been, I am willing to hear about it. However, that was certainly the position when I worked on those matters regularly. In such cases, the onus is on the defence to produce evidence that there was no intent to supply. 
The Minister referred to people living in country areas. That brings me to an instance that I recall from my own days as an enthusiastic boy prosecutor. I was sent to Fort William sheriff court to deputise for the procurator fiscal. First in the court list that morning was an accused who had an enormous soap bar of cannabis resin. He was offering to plead guilty to the simple possession charge. With my customary good humour on a Monday morning, I growled at his defence solicitor that it must be possession with intent to supply or nothing, and went about my business. 
However, when I spoke to the reporting officer, who was a drugs squad officer, he said that the accused lived in a very remote part of the north-west highlands and that he would have to say in court, if he were asked, that it was by no means unusual for people in those circumstances to buy substantial pieces of cannabis resin to take for long-term, but personal, use. He said that he would have to say to the court that he could not exclude that possibility, and so we did not have a strong case for intent to supply. The resin was all in one lump, rather than broken up. There was no cling film or any other paraphernalia that normally would be associated with such intent.
I raise that because it would still be open to that person to adduce evidence, to use the language of the Bill, that the drugs were not for personal supply. However, if that is to be the case, surely an awful lot more such cases will go to trial, although, on a common-sense view, the matter could be resolved a lot more easily and with less cost to the Legal Aid Board. 
There will be a real difficulty for the Government when it comes to establishing what level of drugs will be stipulated in the order. The Minister says that there will be different levels for different drugs; that is common sense. However, as is shown by the situation that I have just outlined, there will be different situations in different towns and cities. If we get the level wrong, the traffic of cases through the courts will be affected enormously. Given the geographical differences, I cannot see how we could get the issue right. 
If there were a real lacuna or gap in the law, I could see that this might be worth trying. However, the law as it exists is perfectly capable of dealing with all the issues if the police and the prosecution services are given sufficient resources to give each case proper consideration and preparation before it goes to court. If there is a problem, I suspect that it stems from a lack of resources, and the provision will not help that. If anything, it might make that worse.

Cheryl Gillan: I should like to raise a couple of issues. The Minister mentioned that no wide consultation on the clause had taken place. On what evidence does she base the need for the clause? I ask because I think that I have incomplete information on the trends in the number of offenders charged with unlawful supply and with possession with intent to supply unlawfully. The figures that are available to me come from the Home Office statistical bulletin for 2001-02, which was prepared, I think, by two people on 13 September 2004. The numbers of those charged in 1992 with supply offences was 2,190, and that number rose steadily each year to reach 7,230 in 1998. It then fell in each subsequent year, dropping to 4,870 in 2001 and 4,830 in 2002. I should be very interested to know the trends for 2003 and 2004.
The figures for those charged with intent to supply unlawfully are similar. The number rose to 9,610 in 1998, before falling steadily in subsequent years to reach 5,980 in 2002. That tells me that we are not being so successful in catching people guilty of being in possession with intent to supply and of unlawful supply. I am hoping that the Minister will reassure me that the provisions will improve those statistics. There is no doubt that the incidence of drug taking and the amount of drugs coming into this country over that period have increased, whereas the amount of people successfully prosecuted appears to have decreased. 
The other point is again about timing. The amount of drugs that will give rise to the presumption will be prescribed by the Secretary of State in regulations. Once again, the Committee does not have the regulations in front of it—not even in the form of a draft—so that we can see what the quantities are, and  what will be forthcoming. The Secretary of State has to draw up those regulations. They can come into effect only after consultation with the Advisory Council on the Misuse of Drugs and, I presume, consultation more widely, too. 
How does the Minister envisage the timing on the clause? How far into the future are we looking? It appears to me that this is a paving clause, and we have a lot of stages to go through before it will bite. If the statistics that I quoted are correct and we are failing to catch dealers in the way that is anticipated, the clause cannot come into operation quickly enough. I hope that the Minister can deal with those two points.

Caroline Flint: We have consulted the police. As I said, we held a forum with my right hon. Friend the Prime Minister, in which we brought together quite a number of people from different parts of the police service to discuss issues of law enforcement in relation to drugs. We also consulted the Association of Chief Police Officers on the issues relating to the clause.
We consulted the Advisory Council on the Misuse of Drugs about the thresholds, because we have to on a statutory basis. We are looking to consult further with ACPO, the Forensic Science Service, the National Treatment Agency for Substance Misuse, DrugScope, the Crown Prosecution Service and other experts in the field to try to come forward with the thresholds. 
I understand the hon. Lady's point about offences, but it is not always clear from the figures how well we are doing on some of the issues. For example, disruption makes a huge difference. Over the past 12 months or so, we have been trying to get addicts into treatment, and I know through activities in which the police were involved that some operations in communities have disrupted supply and made it harder to engage in an active drugs street market. As a result, more people are presenting themselves for treatment, including, some people with addiction problems who are involved in street-level dealing. The issue is not always that clear. 
I have looked at the figures, too. In the past year, for example, we have established five regional branches of the Asset Recovery Agency. At least five middle-market drugs units have been set up, often involving police and Customs and Excise. Also, there is the Serious Organised Crime Agency. There have been some better successes in drug law enforcement, and that is a reason why we are not complacent about the issue. We are considering issues on which the police have come to us. It is not that the measure will be a panacea, but the police feel that there is a loophole, and that the measure will be helpful to them in pressing forward with arrests and prosecutions.

Cheryl Gillan: I presume that the Minister is agreeing with me that the record shows that the number of offenders convicted has dropped dramatically since its peak in 1998. That in itself is worrying. I hope that she is reassuring me that the Government have recognised the failure in relation to dealers, and that she hopes to rely on the clause to help improve the conviction rate for suppliers.

Caroline Flint: In a number of areas, we are considering how we can improve our tackling of level 1, 2 and 3 drug crimes. Towards the end of last year, I was pleased to help launch the London-wide middle market drugs unit, which brings together police officers and Customs and Excise to work at level 2 drug activity.
There are also our measures regarding crack houses, of which around 200 closed last year. At this moment ''Operation Crackdown'' is in progress, a three-month intensive exercise, involving many police forces throughout England and Wales, that focuses on drug-dealing in the community, closes down drug operations when they are on premises, and hopefully will result in more arrests and convictions. 
We are conscious that we must ensure the police are provided with resources. There are more officers than ever before. Community support officers are also important in that regard, because at street level there are often residents living in fear who now feel they can share information with the authorities and provide wider evidence of drug dealing in their communities.

Cheryl Gillan: Will the Minister give way?

Caroline Flint: I have given way twice to the hon. Lady, and I have answered her point. We are not complacent, which is why we have already set in train a number of measures, some of which, as in this case, have come directly from the police themselves. We think the clause is important.
Other issues have been mentioned. I will look at what has been said in the transcript of the Committee's proceedings, and see if there is anything further I can help with. We will commence consultation as soon as possible, and, while allowing for reasonable time for consultation and consideration of views that we receive, we do not anticipate any huge delays. We will ensure that hon. Members, particularly those from the Opposition, are given full information on what will be asked in that consultation, and will be happy to discuss the deliberations from it. 
Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 8, Noes 1.

Question accordingly agreed to. 
Clause 2 ordered to stand part of the Bill.

Clause 3 - Drug offence searches: England and Wales

Cheryl Gillan: I beg to move amendment No. 32, in clause 3, page 3, line 31, leave out 'the appropriate'.

Eric Illsley: With this it will be convenient to discuss amendment No. 33, in clause 3, page 3, line 34, after 'inform', insert 'in writing'.

Cheryl Gillan: The clause significantly enhances the powers of the police with regard to dealers who swallow drugs or conceal them in their body cavities. I understand that is an increasingly common practice among dealers, who wrap substances such as crack cocaine in clingfilm and hide them in their mouths, or indeed in other parts of their body that would probably deter the Minister and me from searching for them, but thankfully do not deter the police and others. Subsection (2) ensures that a drugs-only intimate search may only be undertaken where the person concerned has consented. However, once again there seems to be over-qualification. New subsection (3A) provides that
''the appropriate consent has been given in writing''. 
That has been grouped with my amendment No. 33. 
Will the Minister clarify when consent would not be appropriate? For clarification and future interpretation, what would constitute appropriate consent? Would it be sufficient to sign a form? Is verbal consent sufficient? 
My proposal, to insert ''in writing'', would allow a defendant or offender merely to sign a form indicating their consent. It would be a matter of course in the police station or wherever. Adding the words ''in writing'' is a vehicle to ensure that there are no loopholes that would allow the process to be challenged at a latter stage. In (3A), we say that 
 ''A drug offence search shall not be carried out unless the appropriate consent has been given in writing''. 
I have taken that clue of ''writing'' and tacked it on to (3B), because, if the consent were given in writing, it would be there for all to see and be less likely to be disputed in court. So why not deliver a copy in writing to the person who is the subject of the search and have him signify his consent in writing? Would that not be a simple and practical solution? I hope that the Minister finds it helpful.

Alistair Carmichael: I can certainly support amendment No. 33. It seems to me sensible to clarify that consent should be put in writing. It would, I presume, be the sort of thing that would be put into a form that would be completed and signed as appropriate. If it were not signed, it would be made clear that the opportunity to sign had been given and that the person had not taken it.
I am not so sure about amendment No. 32. There will be occasions when it is not necessarily the person  to be searched who is in a position to give consent and situations where the capacity of the person to be searched is in doubt. So it is appropriate that we retain the words ''the appropriate'' in the clause.

Caroline Flint: Amendment No. 32 would remove the words ''the appropriate'' from new section 55(3A) of the Police and Criminal Evidence Act 1984. That would mean that a drug offences search could be undertaken only with the subject's consent, rather than with appropriate consent. The change is important, because appropriate consent is a defined term in PACE. Section 65(1) of PACE defines appropriate consent as meaning:
''in relation to a person who has attained the age of 17 years, the consent of that person; in relation to a person aged 14 to 16, the consent of that person and his parent or guardian; in relation to a person aged 13 or under, the consent of his parent or guardian.'' 
The definition is just to account for those situations, but it is a widely used term in PACE. For example, it is used regarding the taking of fingerprints, intimate and non-intimate DNA samples and photographs where powers can be exercised with consent, as long as it is appropriate consent. I hope that the hon. Lady will agree to withdraw that amendment, because the effect of it would be to remove the safeguard of parental or guardian involvement in giving consent for those aged 16 or under on drug offence searches. 
Amendment No. 33 would require the police to inform the suspect in writing if they intend to carry out a drug offence intimate search. The clause already obliges the police to give that information to the suspect but, as has been pointed out, it does not require it to be given in writing. That does not prevent the police from supplying that information in writing if they choose to do so. We felt that such a requirement would introduce unnecessary bureaucracy into the process. Adequate safeguards are already built in, because the fact that the authorisation was given, the grounds for it and the fact that consent was given prior to the search must be recorded in the suspect's custody record. The suspect can, of course, obtain a copy of his custody record. In light of those comments, I hope that the hon. Lady will not press that amendment either.

Cheryl Gillan: I am grateful to the Minister for clarifying that point. It is a perfectly reasonable and adequate explanation. Far be it from me to add a further burden of regulation or form-filling on the police. However, as the original consent has to be given in writing, I thought that it would be easy to photocopy or duplicate it and pass it to the defendant so that, at a future date, there was no doubt whatsoever about the authorisation and the appropriate consent being given, when it may be challenged in court. It is a minor point which I thought we should probe in Committee. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mrs. Gillan: I beg to move amendment No. 34, in clause 3, page 4, line 12, leave out from 'draw' to end of line and insert 
'any appropriate inferences from the refusal'. 
I will not detain the Committee. Perhaps I am again dancing on the head of a pin, but I do not know what inferences could be deemed to be improper if they are being drawn by a court; a judge or a jury. I feel that it fetters the discretion of those bodies, therefore to replace the wording by 
''any appropriate inferences from the refusal'' 
would broaden the scope of the proposal and leave it entirely to the discretion of the court, the judge or the jury. It is a simple amendment, to which I hope the Minister will respond.

Alistair Carmichael: I am a little unclear about what the effect of the proposal would be. My difficulty is that I do not know whether I would join the hon. Lady on the head of a pin as I cannot see how the amendment would change things in any material way. At present, it is open to any court to draw such inferences from the refusal as appear proper, to use the same form of words as the hon. Lady. Therefore, why should the amendment be in the Bill?

Caroline Flint: Amendment No. 34 would change the wording of the clause. It would not affect the working of the measure, or make any difference to the ability of the court to draw inferences from a refusal to consent to an intimate search in connection with a drug offence without good cause. The wording in the clause reflects on the other types of language used in legislation; sometimes we are prisoners of what has gone before.
One reason for our wanting to maintain the existing wording is that it is similar to a provision in section 62 of PACE, which allows adverse inferences to be drawn from a suspect's refusal to provide an intimate sample. It would be unhelpful, therefore, for the two provisions—one on providing an intimate sample and one in relation to an intimate search—to appear in the same part of PACE but for different wording to be used. We would not want people to think that there was a different meaning. The wording is consistent with that and with other adverse inference provisions such as section 34 of the Criminal Justice and Public Order Act 1994, which permits adverse inferences to be drawn from a defendant's silence in a police interview. I therefore ask the hon. Member for Chesham and Amersham to withdraw the amendment.

Crispin Blunt: Does the word ''adverse'' appear in the legislation that the Minister referred to?

Caroline Flint: No.

Cheryl Gillan: To take up the cudgels on that point, my hon. Friend is right. The clause as drafted states ''may draw such inferences'' from the refusal as appear  proper, not ''such adverse inferences''. We may accept an amendment from the Minister to insert the word ''adverse'', which would be much clearer; it was part of the thinking behind this small amendment. I will be happy to withdraw it if the Minister will undertake to have a quick look at the clause and ensure that the drafting is absolutely tight.
I am delighted that the Minister has accepted some of our amendments, but it proves my point that the Bill is hastily drawn legislation that has not had its t's crossed and its i's dotted. I do not want to appear  ungrateful, but there are more than a few doubts and we are only on clause 3. I am not trying to score political points, I just hope that the Minister will double check that there are no small omissions from the clause and that it will achieve her objectives. 
I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn. 
Further consideration adjourned.—[Mr. Hepple.] 
Adjourned accordingly at fourteen minutes to Five o'clock till Tuesday 1 February at ten minutes past Nine o'clock.